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New Issue Brief by Ira Glasser, Former Head of ACLU, Outlines Constitutional Standards for Stop-and-Frisk

Most of NYPD’s 100,000's of Frisks Are Illegal; Marijuana Possession Arrests in New York Skyrocket Because of Unlawful Searches

Illegal Searches by the NYPD Contribute to 50,000 Marijuana Arrests in NYC in 2010; 86 percent of Those Arrested are Blacks and Latinos

In New York City, there is increased media attention and public debate about both marijuana possession arrests and the New York City Police Department practice of "stop-and-frisk." As the number of stops and frisks have increased dramatically, so too have the arrests for marijuana possession. Despite the fact that marijuana possession was decriminalized in New York in 1977, marijuana possession is now the number one arrest in New York City. More than 50,000 people were arrested for marijuana possession in 2010 alone, comprising one out of every seven arrests (15 percent).

Often missing from this debate is the Constitution – specifically the Fourth Amendment, and what the Supreme Court has said about how it applies to stops, frisks and searches.

This issue brief -- written by Drug Policy Alliance President Ira Glasser -- describes the legal standards governing when police may stop, question, and frisk an individual on the street. This document provides:

Historical background of the Fourth Amendment

A thorough definition of "stop" and "frisk"

A summary of Supreme Court cases establishing and affirming the legal standards governing stop, question and frisks by the police

Critical questions about the legality of both NYPD's practice of stop-and-frisk and marijuana possession arrests

Stop-and-frisk is a widely used police practice in New York City, so it's important to understand that the factual thresholds for stops, frisks and full searches are not one and the same – they are governed very clearly by different legal standards. Under the applicable law described in this brief, it is clear that the vast majority of stops and frisks as currently conducted by the NYPD are almost certainly illegal. For instance, the only legal justification for a pat-down frisk is when an officer has a reasonable suspicion, based on specific facts (not just a hunch) that the individual stopped is armed and dangerous. But somewhere between 99.75 percent and 99.9 percent of the frisks in NYC do not produce guns. If the law permits frisks only if the police reasonably suspect a concealed weapon, based on facts, how can virtually 100 percent of all frisks turn up no weapon?

In addition to the vast majority of the frisks being illegal, research and media reports by WNYC have demonstrated that many of the arrests for marijuana possession are the result of illegal searches or false charges. Often, a stop-and-frisk encounter turns into a full, illegal search; having up to 25 grams of marijuana in your bag or pocket is not a crime in New York, but if police find marijuana in a pocket or bag, often as the result of an illegal search, they falsely charge the individual with possessing marijuana in public view -- a misdemeanor.

For others, plain trickery is involved -- the police ask people to "empty out your pockets/bag." Many people comply with the officer's request, even though they are not legally required to do so. Once in "public view," the marijuana possession becomes a misdemeanor -- a criminal offense -- and the person is arrested. The NYPD makes nearly a thousand arrests a week for simple marijuana possession - one of every seven arrests in NYC is for marijuana possession – the single biggest reason for arrest in NYC. But in the Bronx alone, the District Attorney throws out 10 -- 15 cases every day because the police falsely charged a person for marijuana possession in public view, when in fact the person possessed marijuana in their pocket or bag.

The legal standards described in this issue brief apply nationwide, regardless of what local city or state laws may say. However, this inquiry focuses on New York City due to the fact that over the last ten years, an astronomical number of New Yorkers have been stopped and frisked by the NYPD.